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Prosecuting mothers-to-be won’t help disabled babies

Tennessee is to prosecute some mothers of disabled children for "risky prenatal behaviour". Don't let it happen in the UK, says a legal expert

By Nicky Priaulx

Crises during pregnancy and after birth are the preserve of health services not courts

(Image: dblight/Getty Images)

In the US, some states prosecute women for committing crimes against their fetuses. The latest example is Tennessee, which is poised to pass a law allowing assault charges to be filed against women whose fetus or newborn is harmed as a result of illegal drug use during pregnancy.

Such behaviour has long been a popular target in other states. In 2001, a South Carolina jury convicted Regina McKnight of homicide by child abuse. Receiving a jail sentence of 20 years, it was deemed the 24-year-old, homeless, mother-of-three had a stillbirth because she’d used crack cocaine.

Although McKnight’s case was finally overturned by the South Carolina Supreme Court in 2008, it illustrates the lengths to which some states will go to protect a fetus, even if it means imprisoning or confining women, sometimes during pregnancy. Such steps are made possible by passing legislation that declares the fetus to be a legal person, affording it a right to life from the moment of fertilisation.

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In other instances, existing laws have simply been stretched. In a 1997 case, the South Carolina Supreme Court extended a child neglect statute to “viable fetuses”. More creatively still, a Florida court prosecuted Jennifer Johnson under drug trafficking laws, determining that she had passed drugs to her child during the brief gap between birth and the cutting of the umbilical cord.

All this stands in stark contrast to the situation in the UK. But for how much longer? An unusual case is waiting in the wings. At its heart is this question&colon; are women who drink heavily during pregnancy committing an offence against their fetus?

This came about as a result of a council seeking a pay-out from what was the Criminal Injuries Compensation Board in 2010 on behalf of a girl now aged 6 and in foster care. She was diagnosed at birth with fetal alcohol spectrum disorder, allegedly because her mother drank excessively during pregnancy.

The council claims, as was accepted by an initial tribunal, that this meant the child had been a “victim of violence” because the mother had maliciously administered poison so as to endanger life or inflict grievous bodily harm.

A higher tribunal, however, found that the girl was not a victim of violence because, at the time, she was “not a person” in legal terms, but a fetus. As such, no crime had been committed, so no criminal injuries compensation was possible. The council has now taken its case to the Court of Appeal.

At face value, its objective looks pragmatic. It is not seeking the prosecution or conviction of the mother but an indemnity for costs as a result of caring for a disabled child. If successful, the case would open up a fairly wide net for similar claims.

But to tap into the criminal injuries compensation scheme in the absence of a conviction, it is necessary to determine whether a crime has been committed. And it is on this point that the case raises broader issues. Though only involving a theoretical assessment of criminality to be successful, there could be very real ramifications for pregnant women, inviting a whole host of reproductive crimes with extensive fetal protection measures at their heart.

Repeated judicial pronouncements in the UK make clear that the fetus lacks legal personhood until born and existing separately from its mother. In light of this, as well as a pretty liberal human rights track record on reproductive rights, it seems unlikely that the Court of Appeal would risk suggesting that a woman could even theoretically have committed an act of violence against her fetus. A great deal would be at risk if it did. Waiting in the wings will be anti-abortionists hoping for a “rebalancing” (or upheaval) of interests so as to undermine the coherence of abortion legislation.

By contrast with the US, the UK has largely relied upon a public health approach to address the minority of individuals who confront such crises during pregnancy. Involving the criminal law in such matters will not reinforce existing public health approaches but probably undermine them – for fear of criminalisation.

In addition, the site of the alleged crime – in utero – is a potential causal mess, constituting a complex process of fetal development that is sensitive to many factors, from genetic make-up to maternal stress, diet and nutrition, exercise levels as well as teratogens – chemicals that affect the unborn child, for example, nicotine, caffeine, pollution, alcohol, cleaning products and drugs, prescription and illegal. Some have a bigger impact earlier in the pregnancy, others later – so that plausibly some women will be engaging in “prenatally risky” practices before realising they are pregnant.

Such factors, and the absence of definitive tests for even well-established conditions like fetal alcohol syndrome, the most serious expression of fetal alcohol spectrum disorder, mean that diagnosis will pivot upon a known history or suspicion of, for example, drinking during pregnancy, alongside the presentation of particular clinical markers, such as a characteristic pattern of facial anomalies in the child. Given significant room for error and the inability to safely rule out innocent causes of developmental conditions, the amount of speculation surrounding prenatal developmental injuries makes them entirely unsuitable for the criminal law.

The story of a woman who drinks excessively whilst pregnant, gives birth to a disabled child that ends up in foster care will always stir up emotion and interest, just as the US cases involving drug abuse do.

Based upon what we know, such behaviour is clearly not giving the fetus the best chance. Equally clear is that a US-style criminal approach offers no solution for the kinds of problems that such exceptional cases pose. Odds are that, on the issue of fetal personhood alone, the criminal injuries compensation indemnity sought in the English appeal court case will not be granted. For women here, it will be critical that this is so.